Court dismisses Fil-Can publisher’s appeal to reduce big damage award

CHICAGO – The Court of Appeals (COA) for Ontario in Toronto, Canada has upheld a lower court’s decision awarding a huge award for damages to Filipino Canadian Senator Tobias C. Enverga, Jr., who claimed he was defamed by Filipino-Canadian publisher Tess Cusipag.

It was alleged that Cusipag and other defendants caused the publication of reports that claimed Tobias did not turn over $6,000 raised for the community organization, Kalayaan (Independence) Cultural Community Center (KCCC), in 2000.

The three-judge COA panel composed of Justices David Doherty, Jean MacFarland and Paul Rouleau added $16,000 in appeal’s costs to the $340,000 earlier awarded to Enverga by Justice Sidney N. Lederman of the Ontario Superior Court in Toronto, bringing to $356,000 the total amount of the award for damages against Ms. Cusipag, publisher of Balita (News) newspaper, Balita Media Inc. (publisher of Balita), reporter Romeo P. Marquez and deceased Carlos Padilla.

In its ruling, the COA panel upheld Lederman’s decision awarding the huge award that demonstrated “a full and accurate appreciation of the legal principles as they apply to the quantification of compensatory and punitive judgments.”

COA’s confined its ruling on the damages, which the media defendants (appellants) wanted reduced as they argued the big award was “out of line with other awards in cases involving the defamation of political figures.” The motion to reduce the award was not raised in the lower court, COA pointed out.

Lederman handed down his ruling on July 13, 2016. The COAt heard the case on April 6, 2017 and issued its ruling on April 12, 2017. The ruling was made public on April 28.

The COA argued that the case against the media defendants was not a “political” case but a controversy created by appellant “so that she could defame the respondent” and turn the case “entirely personal.”

In moving for reduction of the damage award, appellants’ lawyer James H. Chow told the panel that the case should not be likened to the (lawyer Y. R.) Botiuk case, who was awarded $465,000 at trial in a defamation case although his case is similar “in so far as the assessment of compensatory damages is concerned.” But there “were differences between the two cases. … However, there were also significant similarities. The trial judge did not err in considering Botiuk and giving some weight to the award approved in that case in making his assessment of compensatory damages.”

In affirming Lederman’s substantial award of punitive damages against the media defendants, the COA cited the findings of Lederman that “the appellant had repeated the defamation, knowing full well that it was false and intended to continue to repeat the defamation in the future.”

The COA set aside the claim of the media defendants that they had witnesses against Enverga but two of their three witnesses died before they could affirm their allegations before Judge Lederman.

The COA said, “On the facts as found by the motion judge, deterrence could only be adequately served by a significant award of punitive damages. We cannot say that the amount awarded is outside of the range required to serve as an adequate deterrent in the circumstances of this case. We cannot interfere with the award.”

Cusipag did not comment on her loss in her appeal, saying her lawyer “had asked for a copy of the decision.”

Howard Winkler, Enverga’s lawyer, said, “It has been clear from the beginning of this proceeding that the words written by Mr. Marquez and published in Balita Newspaper by Tess Cusipag are false and defamatory of Senator Enverga, were published with extreme malice and that no defense for the publication ever existed.

[quote style=”boxed” ]Sentencing for the criminal contempt of court in the defamation case is set on June 2, 2017.[/quote]

Joseph is a former reporter of the Manila Bulletin, former president of the Rizal-Metro Manila Reporters Association and former president of the Chicago chapter of the National Press Club of the Philippines. A native of Sorsogon, Philippines, he and his family now live in Chicago. A prolific reporter, Lariosa writes a column and news stories for the Filipino Star News and other Filipino community newspapers in the US as well as for GMA News and the Manila Bulletin.